Professional Documents
Culture Documents
PUBLIC
INTERNATIONAL
LAW
AS
APPLIED
TO
PHILIPPINE
LAW
by
Dean Sedfrey M. Candelaria
Ateneo
Law
School
Introduction: NATURE OF INTERNATIONAL LAW
Hart’s observations:
(a) Primary rules of obligations;
(b) Lacks secondary rules of change and adjudication which provide for legislature and
courts;
(c) Lacks a unifying rule of recognition specifying sources of law and providing general
criteria for the identification of its rules.
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SYNTHESIS
A7, S. 20 A7, S. 21 A18, S.25
- loans - treaty / international - foreign military bases,
- concurrence of MB - agreement (e.g. troops or facilities
- President WTO) - treaty
- Example: debt buy - 2/3 vote of Senate - 2/3 vote of Senate,
back and when Congress so
Note: requires, majority vote
Executive agreement as in national referendum,
exception to 2/3 vote and recognized as a
(e.g. exchange of treaty by other
notes) contracting state
VCLT
Case law:
Bayan v. Zamora et al. (G.R. Nos. 138570, 138572, 138587 & 148680, Oct.
10, 2000) – Constitutionality of VFA in relation to Article 18, Sec. 25;
interpretation of the phrase “recognized as a treaty.”
Nicolas v. Romulo (G.R. No. 175888, Feb. 11, 2009) – VFA as mere
implementation of the 1951 RP-US Mutual Defense Treaty; VFA is a sole
executive agreement subject to the Case-Zablocki agreement procedure;
“Romulo-Kenney Agreements of Dec. 19 and 22, 2006,” detaining
American accused in US embassy, is not in accord with Art. 5, Sec. 10 of
VFA; distinguish the following: (a) Art. 5, Sec. 6 – custody from
commission of offense until completion of all judicial proceedings is with
US, while (b) Art. 5, Sec. 10 – after conviction, confinement or detention
by Philippine authorities shall be carried out in facilities agreed on by
appropriate RP-US authorities.
Lim v. Executive Secretary (G.R. No. 151445, April 11, 2002) – “Balikatan
Exercises Terms of Reference” - does not need concurrence by Senate.
Pimentel v. Executive Secretary (462 SCRA 622) – Signing and ratification
distinguished; President may refuse to submit treaty (creating ICC) to
Senate.
(NOTE: GRP already ratified the Rome Statute in August 2011)
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Sps. Renato v. Hon. Rosario (G.R. No. 106064, October 13, 2005) – A debt-
buyback scheme is within the power of the President to enter into under
Art. VII, Sec. 20 of the Constitution.
Deutsche Bank AG Manila Branch v. CIR (GR No. 188550, August 19,
2013) – A requirement of the BIR to first file tax treaty reliefs application
within 15 days before availing of the preferential tax rate of 10% under the
RP - Germany tax treaty cannot prevail over a treaty relief.
GR – allowed
Exceptions:
1. if prohibited by treaty itself
2. if only specific reservations are allowed
3. if incompatible with treaty purpose
Form of reservations/withdrawal/objection:
– written & communicated
[VCLT, Articles 19-23]
Case law:
Reservations to the 1948 Convention on the Prevention and Punishment of
the Crime of Genocide (Advisory Opinion, I.C.J. Reports, 1951) – On the
effect of absence of reservation clause in a Convention; reservations were
contemplated but the purpose of the treaty tended to discourage; intent to
prevent an international crime.
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Case law:
Interpretation of Peace Treaties Case (Second Phase, Advisory Opinion,
I.C.J. Reports 221, 1950) – In a dispute concerning the Peace Treaties of
1947, three signatory states refused to comply with a three-person panel
dispute settlement procedure for the purpose of interpreting the treaty
whereby parties are required to appoint their own representatives and, by
mutual agreement, a third neutral member of a Commission; the U.N.
General Assembly asked whether the Secretary-General may now appoint
the third neutral member; in answering in the negative, the Court observed
that “according to the natural and ordinary meaning of the terms, ‘it was
intended that the appointment of the national commissioners should precede
that of the third member’.” Thus, the three states (Bulgaria, Hungary and
Romania) are under an obligation to appoint their representatives to the
Treaty Commissions, failing which will entail international responsibility.
GR- parties cannot enter into a treaty contrary to jus cogens or norms
recognized and accepted by the international community; non-derogable.
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Effect of later treaty – later one prevails, if all parties conclude and they
intended later one to govern; or, if later one is incompatible with earlier
one.
Exception –
1. if essential basis of consent, and
2. if obligation is transformed radically
Exception to exception –
1. treaty establishing boundary (uti possidetis - African and South
American experience after colonizers left; intended to preserve
territorial integrity in cases of state succession.); or,
2. if the fundamental change arose from a breach by the invoking party
[VCLT, Articles 54, 56, 59, 61, 62]
Case law:
Fisheries Jurisdiction Case (Jurisdiction, United Kingdom v. Iceland, I.C.J.
Reports, 1974) – Test of rebus sic stantibus: the circumstances must have
increased the burden of the obligations to the extent of rendering the
performance of an act essentially different from that originally undertaken.
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Case Law:
Sei Fujii v. California (242 P. 2d 617; 19 ILR 312, 1952)- A California
alien land law, used by California to have the property of a Japanese citizen
in the U.S. escheated to the State, was challenged as contrary to U.N.
Charter, specifically, A55 and A56 on human rights. The Court stated that
the U.S. Constitution distinguished between self-executing and non-self
executing treaties. Here, the U.N. Charter Preamble, A1, A55 and A56
require enabling legislation to affect private persons; the rights of private
persons were not prescribed in detail in the U.N. Charter in regard to the
land law.
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The Asylum Case (Colombia v. Peru, 17 I.L.R. 28; I.C.J. Reports, 1950) – Concept
of “regional custom”; establish that the rule invoked is in accordance with a
constant and uniform usage practiced by States in question; Colombia can not
unilaterally qualify an offense for purposes of asylum; practice is inconsistent.
North Sea Continental Shelf Case (I.C.J. Reports, 1969) – The use of the
“equidistant principle” in delimiting continental shelves has not attained the status
of CIL; for a provision in a Convention to become CIL it must be “norm-creating”
in character.
Nuclear Test Cases (Australia v. France; New Zealand v. France, I.C.J. Reports,
1974) – Communiqué of France to Australia and New Zealand and the U.N.
General Assembly “that the atmospheric tests will be the last of this type” is a
unilateral declaration on a factual or legal situation, made publicly and erga
omnes, which creates binding obligations.
Nicaragua v. U.S. (I.C.J Reports, 1986) – A formal communication that had been
committed to the OAS was held not to be a formal undertaking, but a mere
political pledge.
Case law:
Dissenting Opinion of Judge Tanaka in the South-West Africa Cases (I.C.J.
Reports, 1966) – Concept of “parliamentary diplomacy”; resolutions and
declarations of international organizations as evidence of a general practice.
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(NOTE: Article 25 of the U.N. Charter states that U.N. members “agree to accept
and carry out the decisions of the Security Council…”; interpreted to mean Art. 24,
Ch. VI-VIII on peace and security matters, i.e. intended to be obligatory.)
Case law:
International Status of South-West Africa, Opinion of Sir Arnold McNair (I.C.J.
Reports 128, 1950) – Obligations of the Union of South Africa in relation to the
mandate territory; application of the principles of trust in civil law.
Diversion of Waters from the River Meuse (P.C.I.J series A/B, No. 70, 4 W.C.R.
179, 1937) – Recognition of equity as part of international law in no way restricts
the (international) Court to decide the case ex aequo et bono, if the parties agree.
1. Equity – law cannot cover every possible situation, so, cases may be
decided using equitable principles.
2. Ex aequo et bono – power of ICJ to decide a case equitably outside the
rules of law.
Case law:
Filartiga v. Pena-Irala (630 F. 2d 876, 1980) – Joelito Filartiga was kidnapped and
tortured to death by Pena-Irala who was Inspector-General of Police of Paraguay;
torture may be perpetrated under color of official authority against anyone regardless
of nationality; U.S. Alien Tort Law allowed aliens to sue and have rights (recognized
in international law) enforced before U.S. courts even for acts committed outside the
U.S. provided there is jurisdiction over the defendant in the U.S.; torturer, for civil
liability purposes, is “hostis humani generis” or enemy of all mankind.
Trendtex Trading Corporation v. Central Bank of Nigeria (1 All E.R. 881, 1977) –
schools of thought in adopting international law to a domestic system:
1. incorporation – automatic; except if in conflict with domestic system
2. transformation – international law adopted thru decisions of judges, law or custom
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Case law:
Tañada v. Angara (272 SCRA 18) – Doctrine of incorporation applied in regard
to obligations arising from ratification of GATT-WTO; pacta sunt servanda was
invoked.
Mijares v. Hon. Ranada (G.R. No. 1393325, April 12, 2005) – Recognition and
enforcement of judgments is among the generally accepted principles of
international law.
(iii) Theories on the relationship between Municipal Law and International Law:
1. Monism – international law and municipal law belong to only one system with
international law as superior to domestic law; locates basic norm of the
national legal system in the norm of international law;
2. Dualism – international law as distinct from the domestic law system; dualism
of legal origin, subjects and subject matter; sovereign act of municipal law
means it exceeded its competence in international law but does not void
municipal law.
3. Inverted monism– municipal law as superior to international law; denies the
term “law” to international law.
4. Harmonization – the two legal systems are harmonized and given effect.
(a) States
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Report of the Fifth Committee of First Assembly of the League of Nations, with
reference to Admission to the League of Liechtenstein (6 December 1920) –
Even if denied admission, it remains a sovereign state.
Case study: The Holy See and the Vatican – sui generis legal personality
(ii) Recognition
2 theories:
(a) Declaratory theory- possession of the essential elements; factual criteria
(b) Constitutive theory- recognition is what constitutes a State.
Status – more of an optional and discretionary political act (as seen in the
cases of the former Yugoslavia and Soviet Union)
Case law:
Tinoco Arbitration, 1923 – Even if not recognized, may be de facto;
juridically cognizable.
(iii) Self-determination
Case law:
Declaration on the Granting of Independence to Colonial Territories and
Peoples (U.N. G.A. Res. 1514 (XV), 14 December 1960) – Elements of the
right to self-determination of States:
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1. The Commonwealth of Australia v. the State of New South Wales (32 C.L.R.
200, 1923) – New South Wales is not a foreign country which may be sued
without its consent.
Case law:
International Status of South-West Africa (Advisory Opinion, I.C.J. Reports,
1950) – Mandate created by the League of Nations elapsed when the
League ceased to exist.
NOTE: After WWII, the trusteeship system succeeded the mandate system,
EXCEPT for South African mandate over SW – Africa which South Africa
did not want to place under trusteeship.
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Charter of the United Nations, Articles 1, 2, 7, 104
Case law:
Reparations for Injuries Suffered in the Service of the United Nations (I.C.J.
Reports, 1949) – Capacity of U.N. under international law to sue for damage
caused to an agent in the form of an international claim; but this is not the
same as saying that it has the same rights and duties as a state; personality of
the U.N. is limited by the purpose of its Charter.
(c) Individuals
(i) Classical Rule: Human rights – human being as an object of international law.
(ii) Progression of the Rule: Human being as a subject of international in a limited way.
Case law:
Judgment of the Nuremberg Tribunal – Law of war imposed a duty on individuals;
Article 228 of the Treaty of Versailles illustrates this view of individual
responsibility; acts deemed criminal in international law may be the subject of
international claim; a state cannot protect the individual accused of the crime if the
state exceeded its competence by allowing/ordering the individual to commit a
crime vs. humanity; officers liable but punishment may be mitigated if they merely
followed orders.
(iii) Recent development:
2. Rome Statute of 1998 (ICC) – Individuals may be tried for genocide, crimes
against humanity, war crimes and crime of aggression (core crimes);entry into
force: July 2002; aggression remains to be undefined; only covered crimes
committed after entry into force; no death penalty, no trial in absentia
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(d) Corporations
Case law:
Dispute between Texaco Overseas Petroleum Co./California Asiatic Oil Co. and
the Government of the Libyan Arab Republic (Compensation for Nationalized
Property, Arbitral Awards on the Merits, 19 January 1977, 17 I.L.M., 1978) –
Internationalized contracts entered into between a state and a foreign corporation
gives the latter limited capacity by invoking in international law the rights derived
from the contract.
ANSWER: Yes, for example, under (1) ICSID; (2) Iran – U.S. Claims Tribunal;
and, (3) EUCJ
SYNTHESIS
STATE - STATE – TNC STATE – STATE – STATE – STATE –
STATE (internationalized STATE STATE STATE / STATE /
(in general) contract) (trade) (seas) NSE Individual
(armed (human
conflict) rights)
- ICJ -ICSID WTO- UNCLOS- -ICJ hrs treaty
-EUCJ DSB ITLOS -ICC mechanism
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Preliminary:
as a concept – it is the capacity to:
1. legislate or to prescribe laws/rules
2. enforce laws/rules
as power – it is exercised over:
1. persons
2. property
3. events
Case law:
Island of Palmas Case (Netherlands v. U.S.A., 2 R.I.A.A. 829, Permanent
Court of Arbitration – Test of title in international law is “continuous and
peaceful display of territorial sovereignty”; forms of acquisition of title are:
1. occupation coupled with effectiveness
2. conquest (allowed before)
3. cession, and,
4. accretion;
(NOTE: In international law, title is not sufficient without the first element
of display of State functions.)
Legal Status of Eastern Greenland (P.C.I.J. Reports, series A/B, No. 53,
1933) – Applied Island of Palmas Case.
Government Position:
- GRP claims over other island groups: Paracels, Pratas, Macclesfield
Bank, Scarborough Shoal, Mischief Reef
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NOTE:
New Baselines Law is R.A. 9522 (2009): declared KIG and Scarborough
Shoal as “regime of islands” pursuant to Article 121 of UNCLOS III
Case Law:
Magallona v. Executive Secretary (G.R. No. 187167, August 16, 2011) – R.A.
9522 is constitutional; it is not intended to delineate Philippine territory but
merely regulates sea-use rights over maritime zones and continental shelves
that UNCLOS delimits.
PCA ARBITRATION
Philippine position : The Philippine’s claims (15 in total) are entirely within its
(Tribunal) jurisdiction and are fully admissible.
Chinese position : The Tribunal does not have jurisdiction over the case for the
following reasons:
§ The essence of the subject-matter is the territorial sovereignty over several maritime
features in the SCS, which is beyond the scope of the Convention and does not
concern the interpretation or application of the Convention;
§ China and the Philippines have agreed, through bilateral instruments and the
Declaration on the Conduct of Parties in the SCS, to settle their relevant disputes
through negotiations;
§ Assuming, arguendo, that the subject matter of the arbitration were concerned with
the interpretation or application of the Convention, that subject matter would
constitute an integral part of maritime delimitation falling within the scope of the
declaration filed by China in 2006 which excludes disputes concerning maritime
delimitation from compulsory arbitration.
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HTE Reefs – Fiery Cross Reef, Johnson South Reef, Gaven Reef, Charteron Reef, McKennan
Reef (entitled to 12 NM territorial sea)
LTE Reefs – Mischief and Subi (no territorial sea); Mischief is within Philippine EEZ and
part of CS; only Philippines can erect structures or artificial islands on Mischief;
China’s structures are illegal; although not stated, Subi is within Philippines ECS.
NOTE:
Reed Bank (totally submerged) is part of Philippine EEZ
Ayungin Shoal (occupied by the Philippines) is an LTE within Philippine EEZ.
(A rock above water at high tide is land territory that generates a 12 NM territorial sea and
territorial airspace above the land and its territorial sea. Reclamation may be done with due
regard to its coastal neighbors and the maritime environment.)
(In the EEZ and CS, a coastal state has exclusive right to construct artificial islands or
structures on LTEs.)
4. On Scarborough Shoal:
Ruling: Scarborough Shoal is a HTE entitled to a 12 NM territorial sea only; it is a
traditional fishing ground of various fishermen from the region and China
cannot prevent Filipino fishermen from fishing.
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By coastal state – conduct of naval and aerial patrols in EEZ; exploitation of resources
By other states – freedom of navigation and overflight in high seas and EEZs
Case law:
Fisheries Case (United Kingdom v. Norway, I.C.J. Reports, 1951) – Straight
baseline allowed and delimitation of territorial waters.
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Case law:
North Sea Continental Shelf Cases (Germany v. Denmark/Holland, 8
I.L.M. 340, 1969) – What confers title ipso jure to continental shelf is the
fact that the submarine areas concerned may be deemed to be actually part
of the territory of the coastal state in the sense that, although covered with
water, they are a prolongation or continuation of that territory.
Case law:
Fisheries Jurisdiction Case (U.K. v. Iceland, Merits, I.C.J. Reports, 1974) –
Exclusive rights over fishery zone must take into account interests of other
States.
1982 Convention on the Law of the Sea, Articles 55, 56, 57, 211, 123
New Rule: See A97, UNCLOS - the Rule today is that no penal or
administrative proceedings may be instituted against the master of a ship
except before the judicial or administrative authorities either of the:
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a. flag State, or
b. State of which such person is a national.
(Philippines)
People v. Tulin (G.R. No. 111709, August 30, 2009) – The crime of piracy is
punishable under PD 532. Even if the Philippine-operated vessel (M/T
Tabangao owned by PNOC) was outside Philippine waters, the crime of piracy
is an exception to the general rule on territoriality. Piracy is a crime against the
whole world.
NOTE: Principle of specialty – Requesting state may not try the individual for
any pre-extradition offense other than the one for which extradition was
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asked, or to him more severely than was stipulated by the law of the
requesting state, UNLESS, state of refuge waives requirement.
Case law:
In the Matter of the Requested Extradition of Joseph Patrick Thomas
Doherty
(7 Vand. J.T. L., 1984) – Denial of extradition request for an IRA member
in the US who escaped from Belfast prison and convicted by Northern Irish
court in absentia for murder.
Case law:
Secretary of Justice v. Hon. Lantion (G.R. No. 139465, October 17, 2000)
– Mark Jimenez is without any right to notice and hearing during the
evaluation stage of an extradition process by the DFA under the RP-US
Extradition Treaty.
Secretary of Justice v. Muñoz (GR No. 140520, December 18, 2000) – In re:
to the RP-Hongkong Extradition Treaty, the Court held that the provisional
arrest of respondent was valid noting that the requirements of the
Agreement on documentation and the finding of probable cause have been
complied with. (See new case on Gov’t. of HongKong v. Olalia, GR
153675, April 19, 2007- allowing Munoz bail even as an extraditee. This
overturns the Purganan ruling.)
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1. State Immunity (Sovereign immunity): Head of State and the State itself
Basis: equality and independence of States
Distinguish:
a. Immunity of State – an aspect of act of State
b. Act of State theory – “acts of State carried out within its own
territory cannot be challenged in the courts of other States”; applies to
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Case law:
Victory Transport Inc. v. Comisaria General de Abastecimientos y
Transportes (35 I.L.R., 110 U.S.C.A. 2d Circ., 1994) – Act of
transporting wheat during peacetime is not an act jure imperii.
I1 Congreso del Partido- Cuban Sugar Trade (2 All E.R. 1064, 1981) –
Playa Larga is a Cuban owned vessel but operated by Mambisa, a Cuban
State Trading Co. not a Department of the Cuban Government. Mambisa
sold sugar to a Chilean Co. and shipped the merchandise thru the Playa
Larga. Restrictive immunity applied in this case.
U.S. v. Guinto (182 SCRA 644) – The act of soliciting bids by the U.S.
AF is proprietary in nature.
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ATCI v. Echin (G.R. No. 178551, October 11, 2010) – Echin was hired
by ATCI in behalf of the Ministry of Public Health of Kuwait. An
alleged illegal dismissal case was filed against ATCI and the Ministry.
ATCI cannot plead immunity of the Ministry where the solidary
obligation may be frustrated.
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Remedy of individual:
1. sue in home State of diplomat
2. waiver by State of nationality of diplomat
3. declare diplomat persona non grata
Case law:
U.S. Diplomatic and Consular Staff in Tehran (U.S. v. Iran, I.C.J. Reports
3, 1980) – Iran violated the 1961 and 1963 Conventions for failing to take
appropriate steps to ensure protection of U.S. embassy and staff and
property from attacks by militants students. There was state responsibility
for having even approved of the acts of these demonstrators.
Case law:
Diplomats/Consuls
Holy See v. Rosario (238 SCRA 524) - Holy See enjoys immunity
where the land subject of annulment was bought for site of Apostolic
Nunciature.
Minucher v. CA (214 SCRA 242 and G.R No. 142396, February 11,
2003) - A U.S. diplomatic staff who is a member of the Drug
Enforcement Administration of the DOJ was found to be immune from
suit for alleged criminal/tortuous conduct. As an agent he was allowed
by the Philippine government to conduct activities to contain the drug
traffic.
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International Organizations
DFA v. NLRC (262 SCRA 39) – Illegal dismissal suit against ADB;
immune.
Liang v. People (G.R. No. 125865, January 28, 2000) – A criminal case
for slander against an ADB employee may prosper because it was not
done in the exercise of official functions.
Declaration of Principles Governing the Seabed and the Ocean Floor and the
Subsoil Thereof, Beyond the Limits of National Jurisdiction – Resolution
2749 XXV (1970)
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(i) Scope: concerned with incidence and consequences of illegal acts and the
payment of compensation
(iv) Distinguish:
1. objective responsibility- strict liability (good or bad faith is immaterial)
2. subjective- fault theory
(v) Examples:
1. breach of treaty
2. injury to territory, property, diplomat of a State
3. injury to person/property of aliens
(vii) Requisites:
1. act/omission attributable to the State
2. breach of an international obligation
(viii) Categories:
1. Direct – when injury is against another State (any of its organs or agents).
2. Indirect – against the person or property of a national of another State.
(ix) Imputability: (direct responsibility)
1. State Organs
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(x) Ultra vires acts of State organs and officials – considered act of State even if
beyond the competence of the agent for as long as there is proof of apparent authority
or the act was done within the general scope of authority. An example is when police
officers take revenge against another person but seemingly acted in the role of police
to the average observer.
Case law:
Youmans Case (RIAA iv. 110, 1926) – Here, soldiers were sent to protect
aliens besieged by rioters but ultimately joined in the attack which resulted
in the killing of the aliens. Soldiers inflicted personal injuries or committed
wanton destruction or looting act in disobedience of some rules laid down
by superior authority.
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Case law:
Home Missionary Society Case (RIAA vi. 42, 1920) – This religious
Society suffered losses during the rebellion in the Protectorate of Sierra
Leone. The U.S. claimed compensation on behalf of the Society alleging
that the British Government failed to take appropriate steps for the
maintenance of order. This claim was dismissed because there was an
assumption of risk on the part of the Society and there was no failure of
duty based on the facts.
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These apply to certain areas of activity of aliens, like investment and trade
matters; for the protection of aliens against discriminatory acts of the host
State.
(NOTE: Alien is treated like a national of host State in all respects as to
property right – if protection pertains to the “person” of the alien, apply
international human rights law principles.)
Case law:
South-West Africa Cases, Second Phase (I.C.J. Reports, 1966,
Dissenting Opinion of Judge Tanaka) – “Apartheid” as violation of
principle of equality before the law.
(Philippines)
Mejoff v. Director of Prisons (90 Phil. 70) – Application of the UDHR
by Philippine Supreme Court in a habeas corpus case of an alien of
Russian descent who was brought to the country from Shanghai as a
secret operative by the Japanese forces. After the war, he was arrested
as a Japanese spy by the U.S. Army. He was detained by the
Commonwealth Government and was detained for 2 years after he was
ordered deported. Article 8 of UDHR proclaimed that “everyone has the
right to an effective remedy by the competent national tribunals for acts
violating … fundamental rights…”
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(Writ of Amparo)
Sec. of National Defense v. Manalo (G.R. No. 180906, October 7,
2008); Reyes v. CA (GR 182161, December 3, 2009); Rubrico v. GMA
(G.R. No. 183871, February 18, 2010); and, BOAC v. Cadapan (G.R.
Nos. 184461-62, May 31, 2011) – The writ of amparo is a remedial
measure designed to direct specific courses of action to government
agencies to safeguard the constitutional right to life, liberty and security
of aggrieved individuals.
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Case law:
Texaco Overseas Petroleum Co./California Asiatic Oil Co. and the
Government of Libyan Arab Republic (Compensation for Nationalized
Property, 19 January 1977, 17 I.L.M. 1) – Companies entitled to
“restitutio in integrum” on the basis of violation of an
internationalized contract; tribunal disregarded issue of
nationalization; reference to general principles of law outside internal
law – “breach of contract”; private party has specific but limited
“international capacities” in this case.
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The Corfu Channel Case (supra.)- Albania could not permit use of its
territory to harm others.
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Case law:
DENR v. Concerned Residents (G.R. Nos. 171947-48, December 18,
2008) – Philippines is a member of the International Marine
Organization and a signatory to the International Convention for the
Prevention of Pollution from Ships. Clean-up of Manila Bay is a duty
which covers general pollution incidents.
GR: Every State has a duty to protect its national. The State should establish its
legal interest by proving the nationality of the claim.
Forms of protection:
1. Protest
2. Enquiry
3. Negotiation
4. Submission to arbitral tribunal/court
Case law:
United States [North American Dredging Co. of Texas] v. United Mexican
States (4 R.I.A.A. 26, 1927); See dissent of Judge Nielsen in the
subsequent case of International Fisheries Co., (Nielsen’s Opinions 207,
1931) – Calvo clause: “A contract containing a clause depriving the party
subscribing to the clause of the right to submit any claims connected with
his contract to an international commission.”; the individual can make
such promise but can not deprive his/her own state in applying
international remedies; however, there is no rule of international law
giving the State the right to intervene in order to strike down such a lawful
contract; the remedy of denial of justice is independent of the violation of
contract.
The Tattler (United States v. Great Britain, Nielsen Rep. 489, 1920) – The
American citizens’ waiver of claims (and right of libel) in consideration of
the release of the American schooner Tattler are not binding upon the U.S.
government.
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Banco Nacional de Cuba v. Peter L.F. Sabbatino (376 U.S. 398, 1964) –
The Cuban Government characterized the reduction in the Cuban sugar
quota by the U.S. as an act of “aggression, for political purpose,” which
prompted the Cuban President to nationalize by forced expropriation
property or enterprises in which American nationals had an interest. The
U.S. Supreme Court held that “(h)owever offensive to the public policy of
(the U.S.) and its constituent States an expropriation of this kind may be,
we conclude that both the national interest and progress toward the goal of
establishing the rule of law among nations are best served by maintaining
intact the act of state doctrine in this realm of its application.”
Alfred Dunhill of London Inc. v. The Republic of Cuba (425 U.S. 682, 48
L.Ed. 2d.301, 1976) – U.S. Supreme Court did not apply the act of state
doctrine to this case wherein the Cuban Government failed to return to
Alfred Dunhill of London, Inc. funds mistakenly paid by Dunhill for cigars
that had been sold to Dunhill by certain expropriated Cuban cigar
businesses. The act relied upon by Cuba was an act arising out of the
conduct by Cuba’s agents in the operation of cigar businesses for profit.
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Buttes Gas and Oil Co. and Another v. Hammer and Another (3 W.L.R.
787, H.L., 1981) – In a litigation instituted in the U.K. between two
petroleum companies, there were allegations of conspiracy to cheat and
defraud the U.K. involving foreign rulers in the Persian Gulf region. The
plaintiffs (Buttes) applied for an order that the court should not exercise
jurisdiction in respect of specified matters said to be “acts of state” of the
governments of Sharjah, Umm al Qaiwain, Iran and the U.K. The issue
arose from a press conference given in London in 1970 by Dr. Hammer
wherein he accused Buttes of using improper methods and colluding with
the ruler of Sharjah to backdate a decree by the ruler extending the
territorial waters of Sharjah, from 3 miles to 12 miles so as to obtain for
themselves the benefit of the oil-bearing deposit at the location which Dr.
Hammer claimed was discovered by and belonging to a competitor of
Buttes. It was held that the court cannot entertain the suit for it would
bring to trial non-justiciable issues.
(Philippines)
Vinuya v. Romulo (619 SCRA 533) – Espousal of claim on behalf of the
“Malaya Lolas” is discretionary upon the State (Peace Treaty of 1951
satisfied claims).
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(i) General
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Case law:
1. Jurisdiction
a. Aerial Incidence Case
b. Nicaragua v. U.S.
c. Case Concerning East Timor
2. Provisional Measures
a. Nicaragua v. U.S.
b. Case Concerning Legality of Use of Force
3. Intervention
a. El Salvador v. Honduras
Frabelle Fishing Corp. v. Philamlife (G.R. No. 158560, August 17, 2007) –
To brush aside a contractual agreement calling for arbitration would be a step
backward.
Gonzalez v. Hon. Pimentel (G.R. No. 167994, January 22, 2007) – RA 876
recognizes the contractual nature of arbitration agreement.
RCBC v. Banco de Oro (687 SCRA 583) – Partiality of the Chairman of the
Arbitral Tribunal was manifested when the Chairman gave the parties copies
of the ICC Bulletin which may have equipped RCBC with legal arguments.
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(ii) Purpose:
(iv) Membership
(v) Organs of UN
Security Council}
ECOSOC } “council”
Trusteeship }
Secretariat }
ICJ } “organs”
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(viii) Secretariat
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(iv) GR: State duty to refrain from injuring others through economic acts.
(viii)Free Trade Area (e.g. AFTA, NAFTA): eliminates barriers on trade among
members, but leaves each member State free to determine barriers to the
outside world.
(ix) Customs Union (e.g. EU): a grouping of States in which duties and other
restrictions are eliminated with respect to substantially all trade among
members, and substantially the same duties and other regulations are
applied by all members of the union to imports from all other States.
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(iii) Post 9-11-01: UN Security Council Resolution 1373 acting under Chapter
VII of the UN Charter on threats to peace and on aggression established the
“Counter-Terrorism Committee”
(ii) UNSCR 678: authorized the use of force to enforce Iraq’s obligation to
disarm.
(iii) UNSCR 687: authorized use of force against Iraq to eject it from Kuwait
and to restore peace in the area.
(iv) UNSCR 1441: provided for serious consequences should Iraq fail to
comply with its duty to disarm and cooperate with the UN Inspection
team. The resolution also recognized that Iraq has continued to be in
“material breach” of past resolutions and gave it the last opportunity to
comply.
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>Other Principles:
1. Standard of care of POWs
2. Prohibition on deportation
3. Prohibition on indiscriminate distribution of property
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- Treatment of POWS:
1. No violence, intimidation, insults and public curiosity e.g Breach-
display POWs on TV confessing and criticizing governments (Iraq)
2. Information allowed - name, date of birth, serial number… but one
cannot use coercion to get information
3. Put in camps (away from combat zones)
4. A23- cannot use presence of POWs to render certain points immune
from military operations
5. POWs subject to laws of the State holding them
6. May be disciplined and prosecuted for war crimes
7. May be prosecuted for crimes against the holding State
- During hostilities:
A48, 81, P1– distinguish: population and combatants; civilian and military;
objectives
A51– civilians cannot be object of attack
- prohibits acts or threats to violence or to spread terror
- no indiscriminate attack
A52– civilian objects shall not be object of attack
A53 and 1954 Convention on Cultural Property – cultural property and places
of worships, protected.
A54 – objects indispensable for survival of civilians (e.g. foodstuffs,
agricultural areas, livestock, water supplies, irrigation…)
A56 – installations containing dangerous forces (e.g. dams, dykes, nuclear
generating stations…)
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Held: CIL (no need to be party to Hague Peace Conference or GC)- “overriding
consideration of humanity”
Note: On legality of possession or threat or use of nuclear weapons- not prohibited
(for self-defense) [see Nuclear Weapons Non-proliferation Treaty]
– Disallowed weapons:
1. projectiles (St. Petersburg, 1868)
2. dum-dum bullets (Hague, 1899)
3. asphyxiating and deleterious gases (Hague, 1899) (Gen. Prot., 1925)
4. not detectible by x-ray (1980 Conventional Weapons Treaty, Prot. 1)
5. mines and booby- traps v. civilians (PII of 1980 CWT)
6. incendiary devices v. civilians or military objectives (P III of 1980 CWT)
Note: protect the environment from long-term and severe damage: A55, P1, GC; 1977
Convention on Prohibition of Military or any other Hostile Use of Environmental
Modification Techniques
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– Use of “Protecting Power”: Switzerland; to look after nationals of one State in the control
of one of conflicting parties
– International Fact- Finding (PI):–grave breaches of GC
– Ad Hoc Inquiry (both parties)
– War crimes: subject to universal jurisdiction (e.g. Nuremberg Charter, A6- individual
responsibility for violations, etc…)
(f) The Rome Statute (ICC) and R.A. No. 9851 “Philippine Act on Crimes Against
International Humanitarian Law, Genocide, and Other Crimes Against Humanity”
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Genocide (Article 6)
§ Any of the following acts committed with intent to destroy, in whole or in part, a
national, ethnic, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about
its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
(b) Other serious violations of the laws and customs applicable in international
armed conflict:
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§ If the acceptance of a State which is not a Party to this Statute is required under
paragraph 2, that State may, by declaration lodged with the Registrar, accept the
exercise of jurisdiction by the Court with respect to the crime in question.
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§ Challenges to the jurisdiction of the Court or the admissibility of a case (Article 19)
§ The Court may, on its own motion, determine the admissibility of a case.
§ Challenges to the admissibility of a case may be made by:
(a) An accused or a person for whom a warrant of arrest or a summons to appear
has been issued under article 58;
(b) A State which has jurisdiction over a case, on the ground that it is investigating
or prosecuting the case or has investigated or prosecuted or;
(c) A State from which acceptance of jurisdiction is required under article 12.
§ Admissibility of a case or the jurisdiction of the Court may be challenged only once
by any person or State referred to in paragraph 2. Challenge shall take place prior to
or at the commencement of the trial. Challenges to the admissibility of a case, at the
commencement of a trial, or subsequently with leave of the Court, may be based only
on article 17, paragraph 1(c).
§ If the Court has decided that a case is inadmissible under article 17, the Prosecutor
may submit a request for a review of the decision.
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Duties and powers of the Prosecutor with respect to investigation (Article 54)
§ Prosecutor may conduct investigations on the territory of a state.
Role of the Pre-Trial Chamber in relation to a unique investigative opportunity (Article 56)
§ Take testimony which may not be available subsequently for the purpose of a trial.
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Article 68
§ Protection of the victims and witnesses;
§ Proceedings in camera.
Part 7. Penalties
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§ Error of law.
§ Convicted person, or the Prosecutor on that person’s behalf, may make an appeal:
§ Procedural error;
§ Error of fact;
§ Error of law.
§ Ground that affects the fairness or reliability of the proceedings.
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Contents of request for other forms of assistance under article 93 (Article 96)
§ In writing. In urgent cases, any medium capable of delivering a written record.
Cooperation with respect to waiver of immunity and consent to surrender (Article 98)
§ Court may not proceed with a request for surrender or assistance which would require
the requested State to act inconsistently with its obligations under international law
with respect to the State or diplomatic immunity of a person or property of a third
State, unless the Court can first obtain the cooperation of that third State for the
waiver of the immunity.
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§ Where it is necessary for the successful execution of a request which can be executed
without any compulsory measures, the Prosecutor may execute such request directly
on the territory of a State.
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Funds of the Court and of the Assembly of States Parties (Article 115)
§ Assessed contribution;
§ Funds provided by the United Nations.
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Case Study
Application of International Criminal Law to Philippine Municipal Law: R.A. 9851-
Issues and Concerns
Preliminary Considerations
§ Chapter I: Declaration of Principles
1. Doctrine of Incorporation – generally accepted principles of I.L. (par. a)
2. Adoption of IHL (par. d)
3. Fair Trial – follow international standards (par. f)
4. No implied recognition of belligerency – shall not affect legal status of the parties
to a conflict (par. g)
§ Chapter II – Definition
1. Armed Conflict (par. c)
§ State v. State (International Character)
§ Protracted Armed Violence: Government v. Organized Armed Groups (Non-
International)
§ Armed Groups v. Armed Groups (Non-International)
(NPA v. MILF)
(MILF v. ASG)
2. Standards of Armed Forces (par. d)
a. Responsible Command
b. Disciplinary System
c. Compliance with IHL
3. Enforced or Involuntary Disappearance
§ State or political organization (Non-State Actor)
Note: Only instance NSA mentioned (?)
4. Forced pregnancy
§ To affect ethnic composition (Africa, Bosnia)
5. Perfidy (par. j)
§ Betrayal of confidence of an adversary
6. Protected Person (par. q)
§ Stateless or Refugee
§ Chapter III: Crimes Against International Humanitarian Law, Genocide and Other
Crimes Against Humanity
1. War Crimes – Four (4) Geneva Conventions and Protocols
a. International Armed Conflict
§ Willful killing
§ Torture
§ Wanton destruction of property (outside military necessity)
§ Unfair trial of POW
§ Arbitrary deportation
§ Hostage-taking
§ Forced military service
§ Unjustifiable delay in repatriation of prisoners
b. Non-International Armed Conflict
§ Common A3 of Geneva Conventions violations – willful killing, torture,
outrages upon personal dignity, hostage-taking, no judicial process
c. Other serious violations of customs applicable in armed conflict
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A. Concept of Environment
§ Basic Elements of the Earth: air, land and water
§ All living elements of the earth as well as natural resources
§ Holistic: place of humans in the environment
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Principle 21 – “states have, in accordance with the Charter of the United Nations and
the Principles of International Law, the sovereign right to exploit their own resources
pursuant to their own environmental policies, and the responsibility to ensure that
activities within their jurisdiction or control do not cause damage to the environment
of other states or of areas beyond the limits of national jurisdiction.”
Principle 10
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Principle 15
– “x x x the precautionary approach shall be widely applied by states according to
their capabilities. Where there are threats of serious or irreversible damage, lack of
full scientific certainty shall not be used as reason for postponing cost-effective
measures to prevent environmental degradation.”
Principle 16
– “x x x the polluter should, in principle, bear the cost of pollution, x x x”
Principle 17
– “x x x EIA x x x as a national instrument x x x”
IV. The Core Environmental Law Rights and Duties In Relation to Philippine
Constitutional Law Framework
INTERNATIONAL CONSTITUTION
B. Freedom of Association
INTERNATIONAL CONSTITUTION
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INTERNATIONAL CONSTITUTION
D. Sectoral Concerns
INTERNATIONAL CONSTITUTION
1. Indigenous Peoples § A12, S.5 (ancestral domain) in
§ ILO 169 (Tribal Population) relation to A2, S.22 (indigenous
§ UNDRIPS, 2007 peoples), A10, S.15-21
§ Principle 22, Rio Declaration + (autonomous region), A13, S.6
Chapter 26, Agenda 21 (ancestral lands)
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Article 55 – attacks v.
environment
§ Principle 26 of Stockholm
Declaration, pars. 5 and 20 of
World Charter
§ Principle 24 of Rio Declaration
Jurisprudence:
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File:
02Nov2017
with
Blythe
PUBLIC
INTERNATIONAL
LAW
(2018)
rev.
26Sept2018
(bq)
Dean
Sedfrey
M.
Candelaria
69